UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4820
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE CORRAL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:12-cr-00014-JPJ-PMS-1)
Submitted: May 9, 2013 Decided: May 21, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Zachary
T. Lee, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Corral pled guilty to two counts of forcibly
assaulting corrections officers, in violation of 18 U.S.C.
§ 111(a)(1), (b) (2006) (Counts One and Three), and received an
above-Guidelines sentence of 216 months’ imprisonment. Corral
appeals his sentence, contending that the district court erred
by: (1) applying the aggravated assault guideline to Count
Three, U.S. Sentencing Guidelines Manual (“USSG”) § 2A2.2
(2011); and (2) failing to explain adequately its reasons for
the extent of the upward variance. We affirm.
On October 21, 2011, Officer Delph was on duty at
United States Penitentiary Lee County, a maximum security
federal penitentiary, when Corral, an inmate at the prison,
entered Delph’s office and stabbed Delph in the face, eyes, and
throat with a plastic ink pen that had been converted into a
weapon. When Delph attempted to flee, Corral struck him in the
back with the pen at least two more times and pursued him down
the stairwell. During the struggle in his office, Delph was
able to alert other officers that he was in need of assistance.
Officer Jones responded to the distress call and encountered
Delph being pursued by Corral in the stairwell. Corral moved
toward Jones in an aggressive manner, still holding the ink pen;
Jones stepped back quickly but fell backwards and injured his
wrist. As Corral closed in on Jones, standing over him with the
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pen in his hand, several officers jumped in to restrain Corral.
After the officers’ intervention, Corral continued to verbally
threaten the prison staff and struggled against being
restrained.
On appeal, Corral first challenges the district
court’s application of the aggravated assault guideline to the
assault on Officer Jones because that assault did not result in
physical contact. See USSG § 2A2.2. “In assessing a challenge
to a sentencing court’s application of the Guidelines, we review
the court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Alvarado Perez, 609 F.3d
609, 612 (4th Cir. 2010). Aggravated assault is defined as “a
felonious assault that involved (A) a dangerous weapon with
intent to cause bodily injury (i.e., not merely to frighten)
with that weapon; (B) serious bodily injury; or (C) an intent to
commit another felony.” USSG § 2A2.2 cmt. n.1. Thus, in order
to be sentenced under the aggravated assault guideline, Corral
would have had to commit a felonious assault involving any of
those three outlined conditions. See United States v. Rue, 988
F.2d 94, 96 (10th Cir. 1993).
In Count Three, Corral pled guilty, by the terms of
the indictment, to the felonious assault of Officer Jones using
a deadly or dangerous weapon, punishable by up to twenty years’
imprisonment. See 18 U.S.C. § 111(b). While Corral’s guilty
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plea alone did not justify the application of the aggravated
assault guideline, the sentencing court further found that
Corral intended to cause serious bodily injury to Officer Jones
by using the pen as a deadly weapon, satisfying the requirements
of the aggravated assault guideline. See USSG § 2A2.2 cmt. n.1.
Physical contact or bodily injury is not required for the
assault to qualify as aggravated under the Guidelines. The
evidence supports the district court’s conclusion that Corral
intended to do more than frighten Officer Jones with the weapon.
Accordingly, the district court did not clearly err in
concluding that Corral intended to cause bodily injury to
Officer Jones. See Alvarado Perez, 609 F.3d at 612.
Next, Corral argues that the district court erred by
failing to provide an adequate explanation for the extent of the
upward variance from the Guidelines range. This court reviews a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range[,] under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). When reviewing any variance, the appellate court must
give due deference to the sentencing court’s decision, and the
sentencing court “must give serious consideration to the extent
of the . . . variance” and “set forth enough to satisfy the
appellate court that it has considered the parties’ arguments
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and has a reasoned basis” for its decision. United States v.
Diosdado-Star, 630 F.3d 359, 364-66 (4th Cir. 2011).
We conclude that the district court fulfilled its
obligations to consider the parties’ arguments, to give serious
consideration to the extent of the variance, and to provide a
reasoned basis for the variance. The court noted the statutory
factors it was required to consider in imposing the sentence and
that it could not impose a sentence greater than necessary to
accomplish those goals. The court described Corral’s attack
upon the officers as horrific and ranked it as one of the most
serious it had ever seen. The court also found that Corral’s
attitude should be deterred and that Corral had a history of
violence within the institutions in which he had been
incarcerated. Although Corral argues that the district court
failed to explain why Corral’s assaults were any more horrific
than others, the district court was not required to “justify a
sentence outside the Guidelines range with a finding of
extraordinary circumstances.” United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008) (internal quotation marks omitted).
Moreover, although Corral asserts that the district court failed
to explain how the sentence imposed reflected Corral’s criminal
history not accounted for in the Guidelines, the district
court’s explanation regarding Corral’s violent history while
incarcerated was enough to satisfy us that it had a reasoned
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basis for the chosen sentence. See Diosdado-Star, 630 F.3d at
364. In sum, we conclude that, after carefully considering the
facts of the case, the arguments presented by counsel, and the
18 U.S.C. § 3553(a) (2006) factors, the court provided an
adequate explanation for the above-Guidelines sentence imposed.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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